posted at 4:01 pm on September 28, 2012 by Allahpundit

Pop quiz: Where does the boldfaced language in the excerpt below come from? Con law junkies will know, but anyone who’s been reading this site for the past two weeks should have a hunch.

The Metropolitan Transportation Authority approved new guidelines for advertisements on Thursday, prohibiting those that it “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.”

The 8-to-0 vote by the authority’s board came three days after pro-Israel ads characterizing Islamist opponents of the Jewish state as being “savage” began appearing in subway stations, setting off vandalism, denunciations of the authority and calls for the ads’ removal…

“We’ve gotten to a point where we needed to take action today,” Joseph J. Lhota, the authority’s chairman, said at a news conference on Thursday.

Give up? Re-read this post for the answer. It’s the “fighting words” exception to the First Amendment, the trojan horse by which anti-blasphemy laws and other fun “sensitivity” regulations will eventually be smuggled into American law. Here’s how the Supreme Court described the standard for “fighting words” when it first announced the doctrine in 1942:

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

The “fighting words” exception, as I’ve said before, amounts to a heckler’s veto to your freedom of speech. It’s pernicious in two ways. One: It makes your First Amendment rights contingent upon the sensitivities of others. If the object of your criticism is prone to responding violently, then it’s incumbent upon you to shut up and not offend them. A “right” that disappears when someone gets especially angry about your exercise of it ain’t much of a right. Two: In practice, it operates as moral sanction by the state for vigilantism. The point of the “fighting words” doctrine is to let the cops step in and arrest an offensive speaker before any violence goes down; it’s essentially a form of appeasement to the insulted party, signaling that they don’t have to do anything crazy because the state will punish their enemy for them. (Seems familiar.) Needless to say, the incentive this creates for an offended audience to resort to, or at least threaten, violence is high. Between Mona Eltahawy spray-painting a pro-Israel ad that she didn’t like and the MTA responding the way they have today, you’re seeing a nifty example of “fighting words” logic in action. Obviously this isn’t a criminal case, just a new state policy on which subway ads they’ll run, but the dynamics are the same. Some people saw the ads and couldn’t control themselves, and therefore it’s the ads that must be silenced. Grotesque.

But wait, you say — isn’t this actually the Brandenburg v. Ohio standard at work, not the “fighting words” exception? Nope. That was the point of the post that I asked you to re-read. The Brandenburg case is supposed to cover situations where the speaker is trying to rile up a mob that’s on his side. There’s no heckler’s veto at work; on the contrary, the speaker in a Brandenburg scenario is trying to use the mob to silence his enemies by intimidating them. Note the Supreme Court’s language in the original opinion:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

“Advocacy,” not insults. Brandenburg has nothing to do with offending an audience and everything to do with, say, an Islamist demagogue telling a roiling mob of fanatics that it’s time to go burn down the local U.S. embassy. In fact, offhand, I can’t imagine a fact pattern where a fixed ad like the “Support Israel, Defeat Jihad” posters in the NYC subway system could meet the Brandenburg test for incitement. Even an ad that’s overtly violent, e.g., “Burn down the Supreme Court,” isn’t “likely” to result in anyone taking “imminent” action. The whole point of Brandenburg is to give speakers a wide berth in using incendiary language, with the state permitted to step in only at the last minute if some sort of riot or violence is already brewing. Whereas the whole point of “fighting words” is to limit a speaker’s ability to use incendiary language by letting his political enemies dictate what he is and isn’t allowed to say. If anything, the legal paradigm should be reversed: Force the guy who’s riling up a mob to be circumspect with his language and force the audience that’s prone to violent reaction to be extra tolerant of people with whom they disagree. Instead, we have the system we have. The sooner the Supremes change it, the better.

So…all the ads for “Andres Serrano’s “Piss Christ” exhibit at the Nahem Gallery in NYC have been taken down, as well…Lord knows, that all those Irish and Italian Catholics in Gotham will burn the city to the ground when they see those adverts.

Under a SWalker Presidential Administration I would implement a new Stimulus Program, one which provided a one way ticket to the worst Islamic hellhole on earth to any individual within the borders of the United States of America claiming membership in the Religion of Pieces.

So it’s apparently now legal to react violently if you are offended by something you hear or see, and can simply point to it and claim this as an exemption from consequences…

Interesting.

Wonder how I might react to watching one more episode of Chris Matthews’ show. Or The View. I mean, I could go berserk, deface their vehicles, maybe go so far as to accost them personally – and that would apparently be ‘ok’?

Yea, these morons are inviting a bus/train bombing, the second the Islamo-Fascists, decide they are aggrieved again! I am truly getting sick of these libs committing suicide and us being sprayed with the shrapnel! Keep telling me how these libs have the best interest of the country at heart, when they are continually doing everything they can to undermine our safety! These morons refuse to look at the consequences of their actions! It’s ingrained in them not to! We really have to start segregating these MORONS from decisions that will kill us and the country!

This existential threat to our Constitution must be ended.It is imperative that the Supreme Court Justices who will be retiring in the next 4-8 years replacements are selected by a GOP led President and Congress.

I don’t think even the left wants to seriously think of letting that particular demon, ‘fighting words’, out of the box.

Who’s to say what qualifies?

If people start simply getting violent first, invoking ‘fighting words’ and sorting the details out in court later, leftists won’t be able to burn flags, desecrate the Bible or religious images, tear up or burn copies of the Constitution, spit on our military service members, hang effigies of GOP political figures, or depict former Republican President’s or their families in unflattering ways, etc. without fear of immediate physical reprisal.

When I think of how much speech and expression on the LEFT that would be immediately curtailed, I’m pretty sure they don’t want to see ‘fighting words’ become the law of the land, either.

The sooner the Supreme Court remedies that little error, and disposes of that demon permanently, the better for all concerned, left and right.

I’ve had to see these dumb ads for a storage company which spout liberal talking points such as “This lack of gun control is killing us,” for years – and that’s for a storage company! How is an ad completely unrelated to the product being sold somehow valid yet calling savage behavior for what it is is racist? Ugh… only in New York.

This issue is actually more complex than is given credit, and the mta has handled it badly with its “likely to incite violence” construct. But, a couple of things:

The First Amendment does not guarantee your right to buy ad space. Hot Air has no obligation to sl me a pro-Obama pop-up — though who knows, they might — and I find it hard to believe that even this libertarian (for the moment) crowd would force the mta to display ads from NAMBLA.

This case is more fraught,as it involves a public entity and political speech. However,

2) it’s fairly obvious that the mta should be able to impose some sort of condistent standards on its advertisers. I don’t see a case where the mta could be forced to allow pornography or “graphic language,” to accept a pro-Palestinian poster that referred to “Christ Killers,” or, indeed, anything specifically designed to provoke violence or even incivility. A lot of grey, I know, including a poster that is arguably racist – and arguably not – seeming to refer to all Muslims as savages (I’d be inclined to lea e the poster up, but barely). These cases are different from limiting speech because of ideology — rejecting all anti-jihad posters or all pro-Palestinian ads simply because of the ideas behind them — which would be unacceptable.

Bottom line: the mta — within limits — has not only a right, but an obligation to make public transport in NYC pleasant and safe. You and I, on the other hand, do not have an absolute right to force the mta or any other potential host to accept our advertising.

Using the violence excuse was stupid and lame. If they objected, the should have asserted their right to for e advertisers to meet consistent standards (no racism) and, in this case, accepted the coutr’s decision when they lost.

The “fighting words” rule will be overturned in court. As soon as Geller submits another ad and if it is rejected on that basis she will surly win. Fighting words have to be directed to an individual. Otherwise, I could declare that anything less than adulation for Romney causes me to become violent.

Needless to say, the incentive this creates for an offended audience to resort to, or at least threaten, violence is high.

Yes. Using this logic, Conservatives should react with violence anytime the left, anywhere, anytime, says the right is dumb, mean, or racist. We could stop all criticism in a few years. And have fun doing it.

If I can recall correctly, when I was down in DC in July, there were billboards in the NOVA said that calledpro-lifers extreme.

blammm on September 28, 2012 at 4:23 PM

This is what happens to pro-life billboards in San Francisco:

Two weeks ago, liberal artists, or perhaps politically active drunks, took it upon themselves to completely redesign the political message, as you see here. CBS Outdoor replaced the defaced billboard with its original don’t-abort-your-baby message, only to have it redesigned again — but with less taste. You can view that disgrace here.

So the conservatives behind that pro-life billboard finally took a hint. And that’s how politics in San Francisco works.

Truly changing America’s image in the Middle East would have required shifts in policy—both toward Israel and in America’s antiterror war—too dramatic for Obama to seriously contemplate. Instead, he has pursued a Middle East policy relatively similar to his predecessor’s, just with less hubris and greater subtlety. The benefits are evident today; the costs harder to discern. But the liberals who backed Obama in 2008 because they believed in the importance of changing America’s image among ordinary Muslims weren’t wrong. In fact, we may yet learn how right they were.

How Obama’s Mideast Policy has Worked online, Daily Beast, July 16, 2012…

The MTA is not a private entity. It is government. In the same way it is immune from the consequences of what it does in many cases, it is also required to do things that private entities are free of.

That’s really one of the main problems with the left, isn’t it? Endowing government with rights to be free of government (free speech), and oppressing private entities with ever more government. It’s a disease.

Just as one is either pregnant or not pregnant, one is either a friend of Free Speech or an enemy of Free Speech. There is no in between. There never has been and there never can be. Anyone who does not understand this, knows nothing about free speech. And anyone who even thinks about misapplying “Fire in a crowded theater” or “Fighting words” to try to justify what is clearing being held hostage to the lowest common denominator on the planet knows even less than nothing about free speech.

Yes, I know. I oversimplified the question. I was wondering if this sign was saying something directly againts muslims or was just a pro- Israel ad that those you describe find offensive even if it just says “visit Israel”.

Here in DC we had a kerfuffle a few years back when one of this groups that claims to “heal” gays tried to by subway ads and the usual suspects claimed that the ad violated DC Human Rights laws. After a little back and forth, Metro put up the ads, a surprisingly sensible decision. No viennese ensued; I guess Act Up isn’t the force it used to be.

So your asserting that the MTA has no control whatsoever over its walls? Certainly it can be required to do some things that a private entity would not be required to do — as i said — but I doubt you’d find an unbiased court that says it had no control whatsoever over what goes on its walls.